The Court has spoken: What’s Next?

After much speculations whether the International Court of Justice would exercise its advisory function in the legal consequences of the construction of the Wall request, the court finally issued a detailed opinion.

This advisory opinion, though not binding, is declaratory of the applicable law, its violations and the consequences of those violations. From the start there hasn’t been much doubt about the jurisdiction of the ICJ or the merits of the case. Rather, the main obstacle was seen in the willing of the ICJ to practice its discretion and render and opinion.

The main points to be extracted from the opinion are the following:

The Fourth Geneva Convention Relative to the Protection of Civilian Persons during Time of War and the Hague regulations annexed to the Hague 1907 Convention are applicable to the occupied Palestinian territories.

Human rights law is applicable to the occupied Palestinian territories.

The Wall violates international humanitarian and human rights law, including provisions thereof, which have an erga omnes character of concern to the whole of international community rather and not limited to the relations between the Occupying Power and the people under its occupation.

The Palestinian territories, despite the limited transfer of powers to the Palestinian Authority under the Oslo accords, remain occupied in their entirety.

The Wall de facto annexes occupied territory and thus violate the prohibition on the acquisition of territory by the use of force.

The Wall violates the right of Palestinian people for self-determination, a right that has already been declared by the court more than once as a preemptory right of concern to the whole of the international community.

Israel enjoys, as any other state, the right of self-defense. However, in this case this right does not exclude wrongful acts arising from the construction of the Wall. The right of self-defense is an inherent right of every state, which could be exercised once that state is attacked by another state. The attacks inside Israel are not attacks originating and supported by another state, rather they originate from territories under Israel’s authority. Surely a state cannot claim a right of self-defense against itself. Thus the court rules out the applicability of potential recent developments in international law arising from the recognition that the US attack against Afghanistan after 9/11 was an exercise of its right to self defense against a state which harbored and actively supported terrorists. This determination by the court bares consequences on other Israeli claims, including its claimed right of “targeted killings” arising partly from its inherent right for self-defense.

The Israeli-Palestinian conflict remains to pose a threat to international peace and security. From this statement one can derive that any measure intended to prolong this conflict, such as the Wall, and prevent the conclusion of a peaceful and just solution to the question of Palestine is a threat to international peace and security.

These determinations are declaratory in nature. They state the applicable laws and the consequences of their violation rather than provide an enforceable remedy. However, though the advisory opinion, strictly speaking, is a non-binding advice, it is nonetheless a statement by the UN judicial organ of the applicable laws, the violation thereof, and the consequences arising from that violation under international law, namely customary rules of state responsibility arising from wrongful acts. This advisory opinion resembles another opinion given by the court in the Namibia case where the court explored the legal status of Namibia and declared it to be an occupied territory. Though advisory in nature, the Namibia opinion determined the status of the territory as occupied and cleared the way for the UN organs to take action against South Africa.

A review of the comments made by various states reveals that the overwhelming majority of states, excluding Israel for obvious reasons, do not dispute the merits of the case, the courts analysis and its determination. The central issue disputed, including by the US and European Union, was whether it is appropriate for the court to exercise its discretionary power in this case due to the “political nature” of the question.

The legal consequences for Israel steaming out of its violation of international law are clear: First, to put an end to its violations of international law and abide by its obligations. In practice this means that Israel is under a duty to stop the construction of the Wall. Second, to make reparation. Reparation can be either in the form of restitution, compensation or both. However, primacy is preserved for restitution, while the payment of compensation is supplementary in order to fully remedy the violation and restore the situation as it stood prior to the violation. In practice this means that Israel is under an obligation, first to dismantle the wall and the regime associated with it, and second to pay compensation where restitution fails to restore the situation existing prior to the construction of the Wall. This entails the payment of compensation for the damage caused by the construction of the Wall, which is not made good by restitution in the form of dismantling the wall.

Israel, not surprisingly, has already declared that it will not comply with its obligations under international law as stated by the court. Here lies the second importance of the advisory opinion, namely the statement that Israel’s construction of the wall violates erga omnes obligations, including the right of Palestinian people to self-determination. This means that the rights violated are not only of concern to the Palestinian people but also of concern to the whole of the international community, which is under the obligation to preserve and guard those rights. Three consequences steam out from this determination. First, states shall not recognize the unlawful situation created by Israel’s violation of international law, in particular the de facto annexation of territory. The importance of this determination is significant in the light of president’s Bush declaration that Israeli withdrawal to the 1967 borders is unreasonable. Second, states are not to provide aid or assistance to Israel in its endeavor to construct, complete and impose the regime affiliated with the wall. Third, the international community is under an obligation to cooperate in order to bring an end to the unlawful situation created by Israel. This third consequence puts an obligation on states to consider steps against Israel in order to induce it into compliance with its international obligations.

This third consequence should be seen together with the court’s determination that the Israeli-Palestinian conflict and any measure intended to prolong that conflict and prevent a peaceful and just settlement thereof, including the wall, is and remains a threat to international peace and security. This latter determination is the threshold needed under article 39 of the UN Charter before the Security Council takes enforcement action under chapter VII of the Charter.

The court addresses it advisory opinion to the Security Council, which has the primary responsibility to maintenance of international peace and security under the UN Charter and to the General Assembly, which also enjoys powers with regard to the maintenance of international peace and security. As such, the courts opinion should not be seen as a mere recommendation but for action to be taken by the international community through the UN in the light of the court’s determinations. An action by the Security Council against Israel was always blocked by the use of the US veto power, and there is no apparent reason or a change in the US position to assume that it will act otherwise this time, despite the court’s advisory opinion. It is here where the importance of the court determination that the rights violated are of erga omnes nature and that the Israeli Palestinian conflict remains to pose a threat to international peace and security.

This determination by the court opens the avenue for two possible actions in case of failure by the Security Council to practice its primary responsibility under the UN charter for the maintenance of international peace and security due to the use of the veto power by a permanent member of the Security Council. The first course is reference to the General Assembly under “Uniting for Peace”. Such reference could be made based on the Security Council’s failure to practice its primary responsibility, due to lack of unanimity of the permanent members, for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of peace, or act of aggression. Under those conditions, the General Assembly could consider the matter with a view to taking appropriate binding collective measures.

The second avenue that could be considered is another reference to the ICJ to determine the legal consequences of a veto that prevents the Security Counsel from exercising its duties in a situation that clearly poses a threat to peace and security. The Security Council itself should make such a request in the first instance. Due to the veto power enjoyed by the permanent member concerned such a request would be blocked, thus creating a vicious circle. Such a request might be made by the General Assembly, which can make a request for an advisory opinion from the ICJ on any legal question, including the effects of a veto by a permanent member of the Security Council that prevents the latter from practicing its primary responsibility for the maintenance of international peace and security. This route provides a way to consider, at last, the effects of US veto, which has long prevented any action by the Security Council with regard to the Palestinian question.

To conclude, the advisory opinion of the ICJ is more than another recommendation or advice with regard to the question of Palestine. It sets the fundamentals of international law applicable to the Palestinian territories and claims a role for international law in solving the question of Palestine that has long been subjected to the balance to powers. It remains to been seen whether the international community will live up to the promise and realize its self-image as a community constituted on common principles.

Azem Bishara is currently an LLM student in University College London and a lawyer who has litigated cases concerning the construction of the Wall in the Occupied Palestinian Territories before the Israeli High Court of Justice.